2 Oct 2009

Having sexual intercourse with a woman against her will or without her free consent is traditionally defined as rape, which laws of most countries view as an abhorable crime and provide for strict punishment. It is also recognized as the violation of the human rights of a woman and in international laws, in certain circumstances it is even treated as a crime against humanity and race. The proponents, however, evade the question when it comes to the issue of 'Marital Rape' i.e. rape by the husband during the course of marriage. The dilemma does exist: Is marital rape an offence? Is it a violation of a human rights of the woman? Or, is it an indulgence too much on the part of the society to inquire into the conduct of the parties during conjugal relations?Since the consolidation of criminal laws in India in 1860 (with the 'Indian Penal Code'), India has viewed marital rape as an exception to the offence of rape. Section 375 of the Code, which specifics which acts constitute an offence of rape excludes "sexual intercourse by a man with his own wife" from the offence provided that the wife is not "under fifteen years of age". It was suggested that the law be amended by the Law Commission (in its 42nd Report in 1971) and marital rape be criminalized. However before any action could ensue, the Commission turned turtle and in its 84th Report (in 1980) did not agree with the restructuring of the provision as suggested in the earlier report. The matter was again considered by the Commission in 2000 wherein the Commission decided to continue with the earlier stand. The 172nd Report notes;

Representatives of Sakshi wanted us to recommend the deletion of the Exception, with which we are unable to agree. Their reasoning runs thus: where a husband causes some physical injury to his wife, he is punishable under the appropriate offence and the fact that he is the husband of the victim is not an extenuating circumstance recognized by law; if so, there is no reason why concession should be made in the matter of offence of rape/sexual assault where the wife happens to be above 15/16 years. We are not satisfied that this Exception should be recommended to be deleted since that may amount to excessive interference with the marital relationship.

Posed with this issue the Nepal Supreme Court on the other hand declared the act of marital rape as a violation of the human rights of a woman. The Government sought to defended the law by stating before the Court that "since it is against the Hindu religion, traditions and values that a husband rapes his wife by exercising threat, fear, pressure and force, unlike what has been contended by the petitioner, the current law contains that provision".However, in an elaborate decision giving wide variety of reasons to declare the law as invalid, the Court ruled out the objection of the Government stating that "Hindu religion and its literature stress on purity, cleanliness and behavior of good faith in conjugal life, it can not be said that Hindu religion and traditions exempts the heinous act of rape to wife. Sexual intercourse in conjugal life is a normal course of behavior, which must be based on consent. No religion may ever take it as lawful because the aim of a good religion is not to hate or cause loss to any one. Thus, the pleading of the learned government attorney appearing on behalf of the respondent can not be accepted."The Court also made seething comments on the nature of the activity sought to be defended by the Government, posing extensive insights on the issue of human rights of a woman. The Court observed;

- Whereas, a marriage does not mean women to turn in to slaves. Thus, women do not lose human rights because of marriage. So long as a person lives as a human being he/she is entitled to exercise those in-born and natural human rights. To say that the husband can rape his wife after the marriage is to deny independent existence, right to live with self respect and right to self-determination. Any act which results in non-existence of women, adversely affects on self-respect of women, infringes upon right of women to independent decision making or which makes women slaves or an object or property is not compatible in the context of modern world, rather it is a stone-age thought.

- Whereas, to forcibly compel women to use an organ of her body against her will is serious violation of her right to live with dignity, right to self-determination and it is an abuse of her human rights. The Constitution has guaranteed the right to privacy. Therefore, in the light of those international instruments on human rights, it cannot be said that marital rape is permissible.

- If an act is an offence by its very nature, it is unreasonable to say that it is not the offence merely because of difference in person committing the act. It will yield discriminatory result, if we interpret that an act committed to any other woman is an offence and is not an offence, if the same act is committed to one's own wife. There is no justification in differentiating between the women who are wives and other women.

- Whereas, it has been contended in the written replies that it is beyond imagination that a husband commits rape to his wife, and it is sure that so long as there is love and good faith between husband and wife, there is no situation of rape. It is normal state of affairs, however, sometimes reality of life becomes different and strange than the normal state. Where a wife is treated as an object or property or a means of entertainment and exploitation, her personal health and her needs are ignored in an irrational and inhuman manner and in that situation, an unnatural and brutal act of rape of wife is committed. Such situation may be rarest of rare. Therefore, it is imperative in a married life to discourage the brutal act of rape. If marital rape is punishable, a pure, healthy and clean atmosphere will be created in society in places of disorder and imbalance. In our country, law has prohibited child marriage very long ago but this social evil is still in practice. If marital rape is made punishable, it would help eliminate this social evil as well.

Even in India, various scholarly write-ups [1] [2] have argued for the discontinuation of the existing legal position and for criminalization of marital rape. However the legal position continues to remain the same where marital rape is still legal. It may be argued that the law to this regard has been diluted to certain extent by the enactment of the Domestic Violence Act which gives the right to a woman to prosecute perpetrators of violence in her matrimonial home. However how far would such a legal argument sustain on a charge of marital rape is doubtful.

4 comments:

yes tarun. definitely sexual violence is a crime even if committed by husband to his wife. Rape is made punishable by the Indian Penal Code. When the husband rapes wife it is also made punishable. There is a provision also in the Domestic Violence Act. It is happy to see that such provisions are still not dried up.I am making a small attempt to trace out some important provisions of Domestic Violence Act in my blog :http://senseoflaw.blogspot.com. It is nice that so many law blogs have been started and running successfully.

Dear friends, is there any chance that a wife can file a case over husband if he is forcing her to use certain abnormal positions, forcing her to use certain organs which she don't like... by which even her health is drenching

Dear Anonymous,In reply to your comment, please note that this exception in India applies only against rape, which is defined as an offence under Section 375 of the Indian Penal Code.However the circumstances which you have described would more appropriately be covered under Section 377 which is quoted below. In our opinion an offence can be registered in this provision. However this is only a prima facie view and legal advice should be taken before any action is taken on this.

Section 377. Unnatural offencesWhoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.Explanation. -Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

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